BOARD DATE:	 3 December 2009 

		DOCKET NUMBER:  AR20090006861 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he elected to participate in the Reserve Component (RC) Survivor Benefit Plan (SBP) for spouse coverage.

2.  The applicant states that she was married to the FSM from 28 August 1965 until his death on 12 March 2000.  She states that she was never told that she could be eligible for survivor benefits upon the FSM's death and that records in the Office of the Adjutant General of South Carolina indicate that the FSM did not have an opportunity to elect survivor benefits for her under the RCSBP.

3.  The applicant provides a DD Form 2656-7 (Verification for Survivor Annuity); a copy of the FSM's certificate of death; a copy of their marriage license; a copy of their marriage certificate; a copy of an Internal Revenue Service Form W-4P (Withholding Certificate for Pension or Annuity Payments); a copy of a Standard Form 1199A (Direct Deposit Sign-Up Form); a DD Form 108 (Application for Retired Pay Benefits); an Army National Guard Retirement Points History Statement, dated 2 March 2009; promotion orders, dated 2 October 1975; a copy of separation orders, dated 23 February 1984; and a copy of a letter from the State of South Carolina Military Department Retirement Services addressed to the Board, dated 3 March 2009.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 22 October 1942.  He enlisted in the South Carolina Army National Guard (SCARNG) in the pay grade of E-1 on 19 March 1964.  He and the applicant married on 28 August 1965.  He accepted an appointment as a second lieutenant in the SCARNG on 6 August 1976.

2.  A review of the available records failed to reveal a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) or an RCSBP election form on file for the FSM.

3.  The FSM was discharged from the SCARNG on 18 March 1984 and assigned to the Retired Reserve.

4.  The FSM died on 12 March 2000 at age 57.

5.  The FSM’s Army National Guard Retirement Points History Statement Application for Retirement Pay contains the entry "NO" next to Notice of Eligibility.

6.  The letter from the State of South Carolina Military Department Retirement Services, dated 3 March 2009, indicates that on 18 March 1984 the FSM completed 20 years of creditable service for retirement and that he was honorably discharged from the SCARNG and assigned to the Retired Reserve.  The letter also indicates that National Guard Bureau (NGB) Form 1883 (Survivor Benefit Plan Election Certificate) and NGB Form 23D (Notification of Eligibility for Retired Pay at Age 60) cannot be located in that office and are not on file at the U.S. Army Human Resources Command in St. Louis, Missouri.  Officials at Retirement Services stated that they are uncertain whether the FSM had the opportunity to elect survivor benefits for the applicant and they request that the applicant be considered for survivor benefits.

7.  Public Law 95-397, the RCSBP, enacted 30 September 1978 provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member's 60th birthday; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Before the law was amended as noted below, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or wait until he/she applies for retired pay and elect to participate in the standard SBP.  In other words, failure to elect an option resulted in the default election of option A.

8.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where 20-year letters have been issued after 1 January 2001.  In other words, failure to elect an option now results in the default election of option C.

9.  Title 10, U.S. Code, section 1448(f)(1)(A)(i), states that the Secretary concerned "shall pay an annuity…to the surviving spouse of a person who is eligible to provide an RC annuity and dies before being notified under section 12731(d) of this title that he has completed the years of service required for eligibility for RC retired pay."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the records of the FSM should be corrected to show he elected to participate in the RCSBP for spouse coverage.

2.  Her contentions have been noted and in accordance with Title 10, U.S. Code, section 1448(f)(1)(A)(i), she is eligible to be provided an RCSBP annuity.

3.  There is no evidence to show that the FSM was ever issued a 20-year letter and his Army National Guard Retirement Points History Statement Application for Retirement Pay contains the entry "NO" next to Notice of Eligibility.

4.  Inasmuch as there is no evidence that shows that the FSM was provided an opportunity to make an RCSPB election, the applicant is entitled by law to a spouse annuity under RCSBP beginning on the day after her husband's death.

5.  In view of the foregoing, it would now be in the interest of justice to correct the FSM's records as recommended below.

BOARD VOTE:

__x_____  ___x____  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

a.  showing the FSM was issued his 20-year letter after his death; and

      b.  paying to the applicant the RCSBP annuity retroactive to the day after the FSM's death based upon Title 10, U.S. Code, section 1448(f)(1)(A)(i).



      __________x_______________
       	     CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090006861



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ABCMR Record of Proceedings (cont)                                         AR20090006861



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